June 12, 2024
On June 6, just six days after the closing arguments were submitted, Judge Frank Moskowitz, the judge assigned to the action, Reclaim our Town, et. V. Ginny Dickey, et al, issued a ruling in favor of the Town, the individual Defendants and the Developer.
The lawsuit will be dismissed after the Defendants’ lawyers submit a Proposed Form of Judgment to Judge Moskowitz to be reviewed and signed. Judgment will then be entered, and the lawsuit will be dismissed. Entry of the judgment will bring the litigation to an end unless Reclaim Our Town (ROT) decides to file a motion asking Judge Moskowitz to reconsider his decision or file an appeal.
ROT’s meritless claims and deliberate deception
In the “Under Advisement Ruling,” Judge Moskowitz found that ROT’s lawsuit lacked merit for the reasons set forth in Defendants’ Closing Statements and Closing Arguments. The Closing Statement submitted by the Developer, Sandor Development Company, LLC, characterized ROT’s claim that the Town Clerk provided Larry Meyers with an erroneously numbered petition sheet, as a “complete fabrication.” The Closing Statement went on to observe:
“To be sure, this issue probably began as mere negligence. Mr. Meyers apparently made a printing mistake. But his negligence has devolved into deliberate deception in this Court.” (Closing Statement, p. 17., emphasis added)
ROT should apologize
As a result of ROT’s “deliberate deception” Fountain Hills has incurred thousands of dollars in legal fees, and the reputation of the Town and Town Clerk Linda Mendenhall has been tarnished.
ROT, through its own negligence, failed the residents who supported the referendum. Rather than admit its mistake and move on ROT doubled down, creating a narrative that would shift the blame for its mistake to the Town Clerk.
ROT made no effort to dispel the resulting rumors that the Town Clerk’s alleged mistake was part of a conspiracy between representatives of the Town and the Developers to defeat the Four Peaks Referendum (Four Peaks is the proposed name for the project planned for the Target Plaza). These unfounded rumors are still in circulation.
Recently, Councilmember Allen Skillicorn and Council candidate Gayle Earle have publicly claimed that the Referendum’s failure was the result of corruption. These rumors will continue to cause damage to Fountain Hills’ reputation. They will also fuel distrust and division until ROT acknowledges its mistake and issues an apology.
Friedel, Skillicorn and Toth should apologize
Considering the Court’s apparent ease in deciding that there was no merit to ROT’s claim, it is even more troubling that three of the members of the Fountain Hills Town Council – Gerry Friedel, Allen Skillicorn and Hannah Toth – voted in favor of directing the town attorney to stop defending the litigation.
Some residents believe that Friedel’s vote in favor of a resolution that would result in an admission that the Town and the Town Clerk acted illegally disqualifies him from serving as the Mayor of Fountain Hills. For these residents, Friedel’s vote demonstrates lack of integrity, loyalty and commitment to the Town’s staff and employees.
Here are the facts and law supporting the Judgment
In its lawsuit, ROT sought a Preliminary Injunction, an Order from the Court that would have required the Town Clerk to accept the faulty signature sheets. ROT also requested a Declaratory Judgment that the Town Clerk acted illegally when she rejected the signatures contained on the misnumbered petitions.
The Court and the parties agreed that an evidentiary hearing on the merits of ROT’s claims would be held on May 21. On May 31 the parties submitted written Closing Statements. Six days later the judge issued a ruling, finding that ROT was not entitled to an injunction or a declaratory judgment in its favor because its claims were without merit.
As noted above, Judge Moskowitz’s ruling was based on the facts and legal arguments set out in the Defendants’ Closing Statements and Closing Arguments.
Facts
The following facts have been determined:
- As the Petitioner, ROT had the sole responsibility to ensure that the statute’s requirements were met.
- Both the front side and the back side of the signature sheets must include the number assigned to the petition (REF2024-01) in the lower right-hand corner.
- The number printed on the front side of all the signature sheets circulated by ROT (REF2024-01) was correct.
- The numbers printed on the back side of all the signature sheets (REF2019-01 or REF2019-) were not correct.
These four facts were the only factual determinations necessary to support the Court’s determination that ROT’s lawsuit should be dismissed. However, the Closing Statement debunks the fact that ROT claimed excused its failure to comply with the requirements of the statute. No credible, verifiable evidence was presented to support the claim first advanced by ROT leader Crystal Cavanaugh that the Town Clerk provided ROT with the misnumbered signature form that purportedly set them on a path to failure.
The Town Clerk was not responsible for the misnumbered signature sheet
On Feb. 28, 2024, Cavanaugh published a post in the Fountain Hills Connection Facebook page that began:
“ATTENTION TO ALL THE DEDICATED CITIZENS WHO HELPED COLLECT REFERENDUM SIGNATURES…TO HAVE THIS SIGNIFICANT REZONE ON THE BALLOT WE ARE SORRY.”
The post went on to explain ROT’s failure to ensure that the forms had been properly numbered as follows:
“The referendum team member picked up our referendum packet from Town Hall on January 18. The packet contained the necessary forms. In that packet was the signature petition form that we were told to copy and distribute once the necessary information was filled in. It was scanned and filled out…the Town gave us a form with a pre-printed tiny number on the notary page that went undetected by the team.”
In the Verified Complaint, signed under penalty of perjury, Cavanaugh recited a slightly different explanation:
“The referendum sheet provided by Town Clerk Mendenhall left a space for the (correct) petition serial number on the front of the petition, but on the back of the petition sheet this space was filled in with “REF2019-01” and there was no space for the applicant to place its petition number.” (Verified Complaint, paragraph 19)
According to the Closing Statement, during the May 21 evidentiary hearing Ms. Cavanaugh “tried hard to run away from her verification” of the truth of these allegations and admitted that she had no personal knowledge to support them. (Closing Statement, p. 15)
In his Sworn Declaration, submitted to the Court on March 24, ROT Treasurer Larry Meyers, and the “team member” referenced by Cavanaugh in her initial post repeated the claim that he had gone to the Town Hall on Jan. 18, 2024, where Ms. Mendenhall provided him with “a physical copy of a sample petition sheet.” Meyers does not claim, as Cavanaugh did, that the erroneous number on the back side of the form “went undetected.” Rather, he stated:
“On the back of the petition sheet provided by Town Clerk Mendenhall, Exhibit 1, the space in the lower right-hand corner was filled in with “REF2019-01” and there was no space for the applicant to place its petition number. (Meyer’s Sworn Declaration, paragraph 4.)
More on the mysterious “missing flash drive”
During the evidentiary hearing, evidence was presented that in December 2023, Ms. Mendenhall provided Nancy Plencer, an avowed opponent to the Four Peaks Development, with a hard copy and an electronic copy (on a flash drive) of a complete referendum packet that included blank sample petition sheets. (Closing Statement p. 13)
On January 18 (the day after the Town Council adopted the revised zoning ordinance), Meyers called the Town Clerk to advise her that ROT would be submitting referendum paperwork. The Town Clerk testified that during this meeting she asked Meyers whether he had received the referendum packet from Nancy Plencer and he said that he had. (Closing Statement p. 14, emphasis added) Ms. Mendenhall also testified that Meyers did not visit her office on January 18, and she did not provide him with a hard copy of a signature sheet. (Closing Statement, p. 14, emphasis added)
Surveillance video does not confirm Meyers claim that he was given the misnumbered form on January 18
Meyers’ claim that he was given a hard copy of a signature sheet on January 18, was undermined by surveillance video showing that he did not enter or exit the building on that date. Meyers was unable to recall any details concerning this alleged visit including the time of the visit, where he parked his car, or the door that he used to enter or exit.
During the evidentiary hearing Meyers was unable to recall any details of what he did following the visit to the Town Clerks’ office. However, in his Sworn Declaration, signed two months earlier, Meyers appeared to have perfect recall of what he did after leaving the Clerk’s Office on January 18, as evidenced by the following statement:
“After I received the referendum materials from the Town Clerk on Jan. 18, 2023, (sic), as described above, I proceeded to my home where I scanned the sample petition sheet provided by Town Clerk Mendenhall into my computer. That scanned document, Exhibit 1 to this affidavit, eventually became the petition sheets that were circulated…” (Meyers’ Sworn Declaration, Paragraph 5)
During the evidentiary hearing, Meyers was unable to produce any evidence that he scanned petition sheets into his computer prior to Jan. 23, 2024, after he was provided with the correct petition sheets by Ms. Mendenhall. (Closing Statement, p. 16).
The Town Clerk provided the unnumbered petition sheets to Meyers on January 23
The Town Clerk testified that she met with Meyers on January 23 when he applied for the serial number for the referendum petition. Later that day, Meyers called Ms. Mendenhall and asked her to provide him with electronic copies of the petition sheets, which she did. (Closing Statement, p. 14)
Prior to the evidentiary hearing, ROT admitted that on January 23, the same day Meyer’s applied for a petition serial number, Ms. Mendenhall emailed a sample petition sheet to him that “did not have any serial number preprinted on it.” Closing Statement, p. 13, quoting, the Joint Prehearing Statement)
However, in his Sworn Declaration, Meyers did not acknowledge that he asked Ms. Mendenhall to email the forms to him. Rather, he implied that the correct forms had serendipitously arrived in his in box when he stated:
“I did receive an email from the Town Clerk on Jan. 23, 2024, time stamped 12:02 p.m. which I later learned, after the petition sheets had been submitted, contained a different sample petition form… I had no reason to believe that it was anything but an electronic copy of what had already been provided in person… but since by Jan. 23, 2024, I already had the petition sheets filled out except for the petition numbers, I had no use for a sample petition sheet I thought was no different from the sample petition sheet provided by the Town Clerk on January 18. (Meyers’ Sworn Declaration, paragraph 6)
There was surveillance footage showing Meyers entering the building on Jan. 23, 2024, the date Ms. Mendenhall testified that she met with him and later, at his request, sent him an email attaching the sample signature sheets that left a blank space where the correct petition number could be filled in by the applicant.
The misnumbered signature sheet was used in the 2019 Daybreak Referendum
During the evidentiary hearing, evidence was presented that Meyers had been involved with the 2019 Daybreak referendum where the applicant was assigned the serial number, REF2019-01, the same number “preprinted” on the backside of the hard copy form that Meyers claims was provided to him on January 18. (Closing Statement p. 14)
According to the Closing Statement, Meyers made a printing mistake. After receiving the forms emailed to him by Ms. Mendenhall, he filled in the correct serial number on the front side of the form, but used the Daybreak signature sheet, pre-printed with the serial number (REF2019-01) for the back side. (Closing Statement, p. 14, footnote 5)
During the May 21 hearing, Cavanaugh and Meyers were unable to provide any verifiable evidence to support the claim that the Town Clerk provided ROT with a hard copy of a misnumbered form. There was no verifiable evidence that Meyers even went to Town Hall on January 18, the date he claims the misnumbered form was given to him. (Closing Statement p. 16)
ROT’s claim that Ms. Mendenhall provided Mr. Meyers with a hard copy of an erroneously numbered petition sheet was characterized as a “complete fabrication.” (Closing Statement p. 17) The Closing Statement goes on to observe: “To be sure, this issue probably began as mere negligence. Mr. Meyers apparently made a printing mistake. But his negligence has devolved into deliberate deception in this Court.” (Closing Statement p. 17, emphasis added)
Legal conclusions
The statute’s requirements
As discussed above, ROT failed to present any verifiable evidence that Ms. Mendenhall provided Meyers with an erroneously numbered signature sheet; however, even if this were not the case, ROT could not have prevailed in this action because, as a matter of law:
- Referendum proponents must strictly comply with statutory requirements.
- The Statute requires that the referendum’s serial number be provided in the lower right-hand corner on both sides of the petition sheet.
- If the assigned serial number does not appear on both sides of the petition sheet the Town Clerk cannot accept them.
(Closing Statement pp. 2-4)
It was ROT’s responsibility to ensure that all the requirements of the statute were met. ROT failed to ensure that the front and the back sides of the sheets were printed with the correct serial number. Accordingly, Ms. Mendenhall had a statutory duty to reject the signatures contained on the defective petition sheets.
This standard of “near perfect compliance” is justified “because a referendum is viewed as an extraordinary power that permits a minority to hold up the effective date of legislation that may well represent the wishes of the majority.” (Closing Statement p. 2)
The statute’s requirements are not unconstitutional
It is apparent from the ruling that Judge Moskowitz rejected ROT’s alternative argument that the statutory requirements are unconstitutional. Under Arizona law a statute is presumed to be constitutional and the party challenging its validity has the burden of overcoming that presumption. ROT could prevail on its constitutional challenge only if it could prove that it was impossible for it to comply with the statutory requirements. (Closing Statement pp. 9-10, emphasis added)
This is a burden ROT could not and did not meet. Clearly, it was not impossible for ROT to comply with the statute’s requirements. All the referendum team needed to do was check the signature sheets before they were printed and circulated to ensure that the correct serial-number was printed on the front and back.
What now?
What happens next is up to ROT. Crystal Cavanaugh recently said that ROT was “considering its options”. Realistically, ROT has only three options: it can ask the Judge to reconsider its decision, it can file an appeal, or it can admit that the referendum’s failure resulted from its negligence and move on.
Motions for Reconsideration are rarely granted. A court will agree to reconsider a decision only if the requesting party provides convincing evidence that the decision was based on “erroneous facts” or an erroneous interpretation of the applicable law.
A similar standard will be applied on appeal. However, an appellate court will give great deference to a trial court’s factual determinations. Particularly, determinations concerning the credibility of witnesses. The appellate court will overrule a trial court’s interpretation and application of a statute if it finds that the statute was misinterpreted, misapplied or because it is Unconstitutional.
It is highly unlikely that the decision to dismiss ROT’s lawsuit will be reconsidered or reversed on appeal. Many residents hope that ROT will accept responsibility for the failure of the referendum and decide to move on.